Fenton v The Queen
[2011] NZCA 110
•29 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA523/2010 [2011] NZCA 110 |
| BETWEEN MARCUS JOHN FENTON |
| AND THE QUEEN |
| Hearing: 16 March 2011 |
| Court: Harrison, Courtney and Clifford JJ |
| Counsel: P Mooney for Appellant |
| Judgment: 29 March 2011 at 10.15 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
The appellant, Marcus Fenton, was found guilty following a summary trial in the District Court at Hawera on one charge of burglary of a house property.[1] The only evidence against Mr Fenton was the discovery of his fingerprint at the scene of the crime. His evidence was that the fingerprint must have been placed there when he worked as a joiner on a piece of cabinetry before its installation in the home in about 2003. Judge Watson rejected that explanation.
[1]Police v Fenton DC Hawera CRI-2010-021-000032, 28 April 2010.
Dobson J dismissed Mr Fenton’s appeal against conviction.[2] However, the Judge subsequently gave leave to appeal to this Court on two questions of law as follows:[3]
a) Was the finding of fact made by the District Court Judge (that the fingerprint was left at the time of the burglary) based on an inference which was not open to the District Court as it was not the only reasonably possible inference?
b) When there is a single evidential fact supporting a conviction (a fingerprint) and the District Court Judge found that that evidence, by itself, would support a conviction, can the Judge rely upon that finding to reject any alternative explanation by the appellant without the Judge considering evidence of the appellant independent of that single evidential fact?
[2]Fenton v New Zealand Police HC New Plymouth CRI-2010-443-000009, 11 June 2010.
[3]Fenton v New Zealand Police HC New Plymouth CRI-2010-443-000009, 28 July 2010 at [14] and [6].
In argument before us Mr Mooney accepted that the second question was not one of law arising from Mr Fenton’s conviction. We shall confine our consideration to the first question accordingly.
Background
A property in Opunake was burgled twice, a few days apart, in August 2008. Some wine and beer were stolen from a shelf in the kitchen pantry on each occasion.
A police constable, Constable Craig Taylor, investigated both burglaries. He was unable to find any fingerprints in the pantry area after the first burglary. However, he was able to lift two prints from the pantry after the second burglary. One was from the inside edge of the top left shelf of the pantry somewhere at a height of about 1.9 metres from the floor; the other was just below that print, on the edge of the shelf below. The lower print was positively identified as Mr Fenton’s left forefinger fingerprint.
Constable Taylor cleaned with spray the areas he had examined after the first burglary. At trial he was unable to say affirmatively whether he cleaned the area from which the two prints were lifted after the second burglary. However, he believed that he had examined and cleaned the same area because he made a note about alcohol remaining there from the first burglary. That alcohol was stolen in the second burglary.
The prosecution called two witnesses at trial – Constable Taylor and Andrew Johnstone, a fingerprint officer. Mr Johnstone’s evidence was that it is impossible to date the age of a fingerprint; that while it was highly unlikely it was possible that a latent print left on the surface in 2003 might remain providing there was no interference by cleaning compounds, rags or movements of associated articles; that Mr Fenton’s fingerprint showed no signs of damage; and that under normal housekeeping circumstances he would expect fingerprints to be at least damaged and possibly obliterated. In Mr Johnstone’s opinion, almost perfect conditions would be required for a fingerprint to survive for five years.
Mr Fenton denied that he had ever been to the burgled property. His explanation was that his fingerprint was placed there while he was working as a joiner in 2003. He had recently researched some of his former employer’s records. They disclosed that he would have been involved in completing joinery which was installed in the house; he was uncertain about whether it was a new house or a kitchen renovation. Mr Fenton accepted that his involvement was limited to building or construction, and did not extend to installation which was undertaken by a separate carrier; and that the cabinetry would have been cleaned with an airgun before leaving the workshop.
Judge Watson found Mr Fenton guilty of the second burglary on these grounds:
[11] If his fingerprint in the same pristine condition that was found when lifted is to be his, one must assume that whoever installed those kitchen units did not in any way displace his fingerprint. If one looks at the actual placement of the fingerprint in relation to the shelf itself, it is clear that the shelf had to be installed on a little bracket, so clearly somebody would have been handling in and around that area. It assumes also that notwithstanding what would probably be accepted or current practice, the kitchen was not thoroughly wiped clean, brushed down or presented to the new owner in its best possible condition by whoever installed it. It assumes that the owner never cleaned the areas around the shelves and it also assumes, of course, that this was not an area which was cleaned by the constable at the time that he undertook the original fingerprint investigation.
[12] A kitchen shelf is not an area of perfect condition, and as Mr Johnston[e] said in his evidence, it is possible but unlikely, and that I think is the theme of where we’re at today. It is possible but unlikely that Mr Fenton’s fingerprint remained. It is possible but unlikely that Constable Taylor didn’t clean down that area. It is possible but unlikely that the original installers did not tidy or clean around that area, or indeed leave their own fingerprints or in other ways touch that area so there is no perfect print left, and it is possible but unlikely that for a space of five years that area was never touched, cleaned, scraped, or otherwise dealt with in the usual course of cleaning in and out of pantries. When one looks at all those possible but unlikely scenarios, it is doubtful that Mr Fenton’s explanation can hold in this particular case.
[13] I am satisfied to the required standard that it was Mr Fenton’s fingerprint which of course has been conceded, but I do not accept for one minute the possibility or suggestion that that fingerprint was able to be sustained in the pristine condition that it was found some five years from the time that he might possibly have touched that area as part of his role as a joiner.
Mr Fenton appealed against his conviction on the grounds that, first, the District Court Judge’s findings were against the weight of evidence and, second, the Judge had failed to make an explicitly adverse credibility finding against him. In a carefully reasoned judgment, Dobson J dismissed the appeal. However, when granting leave to appeal to this Court, Dobson J observed as follows (citations omitted):
[7] I had reservations that both questions could extend to argument that raises questions of fact. The first question, as one of law, depends on the standing of the proposition that the fingerprint had survived from Mr Fenton’s work on the joinery during its construction as a “reasonably possible inference”. The essence of the District Court Judge’s reasoning involved the rejection of that notion. However, Mr Mooney foreshadowed a scope of argument that did not extend to the relative tenability of the competing inference that the fingerprint had been placed during manufacture of the joinery, and had survived since then. Rather, he committed to confining any argument to the lawfulness of the reasoning process involved, by which the Judge rejected that possible explanation for the presence of the fingerprint, on his way to being satisfied that the prosecution had established that the fingerprint was left in the course of the burglary. That does give rise to a question of law as to the entitlement of the Court to find the elements of a criminal charge established on the basis of an inference, notwithstanding the presence of a possible inconsistent inference.
[8] To the extent that the real issue lying behind this question is the correctness of the Judge’s rejection of the prospect that Mr Fenton’s fingerprint was placed on the joinery, other than in the course of committing a burglary, my judgment at [8] reviewed the evidence of the expert acknowledging that possibility. It introduces the prospect of an argument on the basis of authorities such as [Edwards v Bairstow [1956] AC 14 (HL)] that a factual finding that was not open on the evidence, or was contrary to all the evidence, amounts to an error of law. In New Zealand, the Supreme Court has cautioned against affording any broad standing to this possible category of questions of law, at least in the context of defining questions of law that are potentially appealable from decisions of the Employment Court. However, it retains at its core, in one of the formulations from Edwards v Bairstow, that questions of law for the purposes of an appeal include a state of affairs “...in which the evidence is inconsistent with and contradictory of the determination”.
We accept Mr Collins’ criticism of the remaining question. It calls for an answer to a question which is initially framed in the positive but is completed by a double negative. It defies an answer without qualification or explanation; and contains as a premise an assertion that was rejected by Judge Watson – that is, that there was more than one reasonably possible inference. Mr Collins submits that it would be better framed as:
Was the finding of fact made by the District Court Judge – that the fingerprint was left at the time of the burglary – the only reasonably available inference?
However, as we shall explain, the question in these reformulated terms still defies an answer without qualification.
Appeal
In support of the appeal, Mr Mooney identifies two undisputed primary facts. One is the discovery of Mr Fenton’s fingerprint on the joinery after the second burglary; the other is Mr Fenton’s involvement in its manufacturing five years before. These facts, he says, give rise to two possible inferences: one is that the fingerprint was left at the time of the burglary (as the Judge found); the other is that it was left at the time of manufacturing the cabinetry.
Mr Mooney relies on this passage from McCarthy J’s judgment in Commissioner of Inland Revenue v Frethey:[4]
The distinction between questions of fact and questions of law is often difficult to perceive ... I do not agree that the question of the proper inferences from facts is always a question of law. I agree that whether any inference in support of the particular conclusion can be drawn, in other words whether there is any evidence to support it, is a question of law ... I am prepared to accept for the purposes of this case, that whether a particular conclusion is the only reasonable inference from certain facts is also a question of law, although there may be some doubt as to that, but between these extremes there is a wide field where the inference to be drawn is a matter of judgment or assessment or weight.
(Emphasis added.)
[4]Commissioner of Inland Revenue v Frethey [1961] NZLR 245 (SC) at 249.
Mr Mooney says that Judge Watson erred in law by drawing an inference adverse to Mr Fenton when an alternative possible inference was available which was consistent with innocence.
In arguing to the contrary, Mr Collins submits that a number of highly improbable factors must have been operative if the fingerprints had not been placed at the time of the burglary. The Judge found that that was not a reasonable possibility. In particular, Mr Collins says that the Judge would have had to find all these propositions were tenable:
(a)The fingerprint, having been placed on the cabinetry shelf in the factory five years previously by Mr Fenton, had survived completely intact for five years.
(b)In the intervening five years nobody else, from the factory workers installing the pantry to different home occupants to any visitors, had left an identifiable fingerprint lift in that general area of the pantry.
(c)Constable Taylor was unable to find that fingerprint during his first inspection but found it on the second.
(d)Constable Taylor when cleaning the area cleaned all the other fingerprints but not Mr Fentons.
(e)The original installers did not tidy or clean around the area or leave their own fingerprints.
(f)The area did not accumulate a layer of dust in the intervening five years.
Analysis
We are content to proceed according to McCarthy J’s identification of two possible types of questions of law in Frethey’s case. The first does not arise for consideration – without doubt, there was evidence to support Judge Watson’s conclusion. The second, and more problematic, possibility is whether the Judge’s conclusion was the only reasonable inference available “from certain facts”.
In our judgment the fallacy underlying the remaining question of law, even as reformulated, is Mr Mooney’s premise that Judge Watson was bound to confine his evidential evaluation to the two undisputed facts upon which Mr Mooney relies. The Judge was the fact finding tribunal. He was bound to consider all of the evidence. He was entitled to make findings of fact based upon it.
The prosecution had adduced evidence placing Mr Fenton’s fingerprint in the immediate vicinity of the crime scene. On its own, this evidence was highly if not decisively probative of guilt. The only question was whether there were any circumstances which might raise a reasonable doubt that the fingerprint was in fact placed there when the burglary was committed in August 2009. If so, Mr Fenton was entitled to its benefit.
However, the prosecution evidence was not limited to the discovery of Mr Fenton’s fingerprint. In particular there was additional evidence of: (1) the location of the print in close proximity to where the goods were stored at the time of the second burglary; (2) the location of the print in an area of the cabinetry where an installer – somebody who worked on it after Mr Fenton – must have worked before installation; (3) Constable Taylor’s discovery of the print in the immediate area of and after the second burglary; (4) Constable Taylor’s cleaning of that general area after the first burglary; and (5) Mr Fenton’s admission that cabinet units were normally cleaned with an airgun before leaving the workshop for installation. The Judge was entitled to draw an inference from these five primary facts that it was highly likely the fingerprint was placed there at the time of the second burglary.
Judge Watson was then entitled to consider, as he did, whether there was a reasonable possibility that the print was placed at the scene in 2003. It was a question of evaluating all realistic possibilities. In this respect the Judge expressly relied upon the undisputed expert evidence that: (1) the print was in a perfect condition; (2) it is possible but highly unlikely that a print will survive intact or without damage for five years; and (3) a print would not survive normal conditions where the area is likely to be cleaned or wiped.
The only factor which might have affirmatively raised a doubt was the possibility – as the Judge described it – that Mr Fenton may have touched the affected area in 2003. However, based upon all of the evidence – not just the facts that Mr Fenton’s fingerprint was discovered at the scene of the crime and that he had worked on the kitchen cabinetry in 2003 – the Judge was satisfied beyond reasonable doubt that Mr Fenton left the print at the time of the second burglary. This finding of fact was based upon his evaluation of all the evidence given at trial. This was not a case where the facts as found might have supported two inferences of equal weight. And we repeat that there was certainly a sufficient evidential foundation available for the Judge to conclude that Mr Fenton was guilty of the crime of burglary.
Judge Watson’s reasoning process cannot be faulted. In exercising his fact finding function he was not satisfied that any of the available possibilities, singularly or collectively, gave rise to a reasonable doubt or a realistic or rational alternative to Mr Fenton’s guilt. It was classically a case where the inference drawn by the Judge, to adopt McCarthy J’s words in Frethey’s case, was “a matter of judgment or assessment of weight”.[5] We agree with Mr Collins that the words of this Court in R v Seekamut are particularly apt to describe Mr Fenton’s appeal:[6]
Counsel has raised many possible alternative inferences consistent with innocence, and argued that those inferences must be preferred. If on an objective basis that has regard to all circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The [Judge’s] function is to assess the whole of the evidence and in doing so may conclude that a suggested alternative is not reasonably tenable.
[5](1961) NZLR 245 at 249.
[6]R v Seekamut CA82/03, 10 July 2003 at [21].
In these circumstances the remaining question of law for determination as reformulated by Mr Collins would have to be further reformulated as follows:
Was the finding of fact made by the District Court Judge – that the fingerprint was left at the time of the burglary – the only reasonable available inference from the factual findings made at trial?
We very much doubt that the question, even in this form, is one of law. But, if it is, it should be answered in the affirmative.
Result
Mr Fenton’s appeal against conviction is dismissed.
Solicitors:
Mooney & Webb, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent
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